N.Y. CPLR § 3101

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 3101 Scope of disclosure § 3101. Scope of disclosure. (a) Generally. There shall be fulldisclosure of all matter material and necessary in the prosecution ordefense of an action, regardless of the burden of proof, by:(1) a party, or the officer, director, member, agent or employee of aparty;(2) a person who possessed a cause of action or defense asserted inthe action;(3) a person about to depart from the state, or without the state, orresiding at a greater distance from the place of trial than one hundredmiles, or so sick or infirm as to afford reasonable grounds of beliefthat he or she will not be able to attend the trial, or a personauthorized to practice medicine, dentistry or podiatry who has providedmedical, dental or podiatric care or diagnosis to the party demandingdisclosure, or who has been retained by such party as an expert witness;and(4) any other person, upon notice stating the circumstances or reasonssuch disclosure is sought or required.(b) Privileged matter. Upon objection by a person entitled to assertthe privilege, privileged matter shall not be obtainable.(c) Attorney's work product. The work product of an attorney shall notbe obtainable.(d) Trial preparation.1. Experts. (i) Upon request, each party shall identify each personwhom the party expects to call as an expert witness at trial and shalldisclose in reasonable detail the subject matter on which each expert isexpected to testify, the substance of the facts and opinions on whicheach expert is expected to testify, the qualifications of each expertwitness and a summary of the grounds for each expert's opinion. However,where a party for good cause shown retains an expert an insufficientperiod of time before the commencement of trial to give appropriatenotice thereof, the party shall ert's opinion. However,where a party for good cause shown retains an expert an insufficientperiod of time before the commencement of trial to give appropriatenotice thereof, the party shall not thereupon be precluded fromintroducing the expert's testimony at the trial solely on grounds ofnoncompliance with this paragraph. In that instance, upon motion of anyparty, made before or at trial, or on its own initiative, the court maymake whatever order may be just. In an action for medical, dental orpodiatric malpractice, a party, in responding to a request, may omit thenames of medical, dental or podiatric experts but shall be required todisclose all other information concerning such experts otherwiserequired by this paragraph.(ii) In an action for medical, dental or podiatric malpractice, anyparty may, by written offer made to and served upon all other partiesand filed with the court, offer to disclose the name of, and to makeavailable for examination upon oral deposition, any person the partymaking the offer expects to call as an expert witness at trial. Withintwenty days of service of the offer, a party shall accept or reject theoffer by serving a written reply upon all parties and filing a copythereof with the court. Failure to serve a reply within twenty days ofservice of the offer shall be deemed a rejection of the offer. If allparties accept the offer, each party shall be required to produce his orher expert witness for examination upon oral deposition upon receipt ofa notice to take oral deposition in accordance with rule thirty-onehundred seven of this chapter. If any party, having made or accepted theoffer, fails to make that party's expert available for oral deposition,that party shall be precluded from offering expert testimony at thetrial of the action.(iii) Further disclosure concerning the expected testimony of anyexpert may be obtained only by court order upon a showing o be precluded from offering expert testimony at thetrial of the action.(iii) Further disclosure concerning the expected testimony of anyexpert may be obtained only by court order upon a showing of specialcircumstances and subject to restrictions as to scope and provisionsconcerning fees and expenses as the court may deem appropriate. However,a party, without court order, may take the testimony of a personauthorized to practice medicine, dentistry or podiatry who is theparty's treating or retained expert, as described in paragraph three ofsubdivision (a) of this section, in which event any other party shall beentitled to the full disclosure authorized by this article with respectto that expert without court order.2. Materials. Subject to the provisions of paragraph one of thissubdivision, materials otherwise discoverable under subdivision --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only (a) ofthis section and prepared in anticipation of litigation or for trial byor for another party, or by or for that other party's representative(including an attorney, consultant, surety, indemnitor, insurer oragent), may be obtained only upon a showing that the party seekingdiscovery has substantial need of the materials in the preparation ofthe case and is unable without undue hardship to obtain the substantialequivalent of the materials by other means. In ordering discovery of thematerials when the required showing has been made, the court shallprotect against disclosure of the mental impressions, conclusions,opinions or legal theories of an attorney or other representative of aparty concerning the litigation.(e) Party's statement. A party may obtain a copy of his own statement.(f) Contents of insurance agreement. (1) No later than ninety daysafter service of an answer pursuant to rule three hundred twenty orsection three thousand el copy of his own statement.(f) Contents of insurance agreement. (1) No later than ninety daysafter service of an answer pursuant to rule three hundred twenty orsection three thousand eleven or three thousand nineteen of thischapter, any defendant, third-party defendant, or defendant on across-claim or counter-claim shall provide to the plaintiff, third-partyplaintiff, plaintiff on counter-claim, and any other party in the actionproof of the existence and contents of any insurance agreement in theform of a copy of the insurance policy in place at the time of the lossor, if agreed to by such plaintiff or party in writing, in the form of adeclaration page, under which any person or entity may be liable tosatisfy part or all of a judgment that may be entered in the action or toindemnify or reimburse for payments made to satisfy the entry offinal judgment. A plaintiff or party who agrees to accept a declarationpage in lieu of a copy of any insurance policy does not waive the rightto receive any other information required to be provided under thissubdivision, and may revoke such agreement at any time, and upon noticeto an applicable defendant of such revocation, shall be provided withthe full copy of the insurance policy in place at the time of the loss.Information and documentation, as evidenced in the form of a copy of theinsurance policy in place at the time of the loss or the declarationpage, pursuant to this subdivision shall include:(i) all primary, excess and umbrella policies, contracts or agreementsissued by private or publicly traded stock companies, mutual insurancecompanies, captive insurance entities, risk retention groups, reciprocalinsurance exchanges, syndicates, including, but not limited to, Lloyd'sUnderwriters as defined in section six thousand one hundred sixteen ofthe insurance law, surplus line insurers and self-insurance programsinsofar as such documents relate limited to, Lloyd'sUnderwriters as defined in section six thousand one hundred sixteen ofthe insurance law, surplus line insurers and self-insurance programsinsofar as such documents relate to the claim being litigated;(ii) if the insurance policy in place is provided, a complete copy ofany policy, contract or agreement under which any person or entity maybe liable to satisfy part or all of a judgment that may be entered inthe action or to indemnify or reimburse for payments made to satisfy theentry of final judgment as referred to in this paragraph, including, butnot limited to, declarations, insuring agreements, conditions,exclusions, endorsements, and similar provisions;(iii) the contact information, including the name and e-mail address,of an assigned individual responsible for adjusting the claim at issue;and(iv) the total limits available under any policy, contract oragreement, which shall mean the actual funds, after taking into accounterosion and any other offsets, that can be used to satisfy a judgmentdescribed in this subdivision or to reimburse for payments made tosatisfy the judgment.(2) A defendant, third-party defendant, or defendant on a cross-claimor counter-claim required to produce to a plaintiff or third-partyplaintiff or plaintiff on a counter-claim all information set forth inparagraph one of this subdivision must make reasonable efforts to ensurethat the information remains accurate and complete, and provide updatedinformation to any party to whom this information has been provided atthe filing of the note of issue, when entering into any formalsettlement negotiations conducted or supervised by the court, at avoluntary mediation, and when the case is called for trial, and forsixty days after any settlement or entry of final judgment in the caseinclusive of all appeals.(3) For purposes of this subdivision, an application for insuranceshall not be treated a and forsixty days after any settlement or entry of final judgment in the caseinclusive of all appeals.(3) For purposes of this subdivision, an application for insuranceshall not be treated as part of an insurance agreement. Disclosure ofpolicy limits under this section shall not constitute an admission thatan alleged injury or damage is covered by the policy.(4) Information concerning the insurance agreement is not by reason ofdisclosure admissible in evidence at trial.(5) The requirements of this subdivision shall not apply to actionsbrought to recover motor vehicle insurance personal injury protectionbenefits under article fifty-one of the insurance law or regulationsixty-eight of title eleven of the New York codes, rules andregulations.(g) Accident reports. Except as is otherwise provided by law, inaddition to any other matter which may be subject to disclosure, thereshall be full disclosure of any written report of an CPLR § 3101 Page 2 --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only accident preparedin the regular course of business operations or practices of any person,firm, corporation, association or other public or private entity, unlessprepared by a police or peace officer for a criminal investigation orprosecution and disclosure would interfere with a criminal investigationor prosecution.(h) Amendment or supplementation of responses. A party shall amend orsupplement a response previously given to a request for disclosurepromptly upon the party's thereafter obtaining information that theresponse was incorrect or incomplete when made, or that the response,though correct and complete when made, no longer is correct andcomplete, and the circumstances are such that a failure to amend orsupplement the response would be materially misleading. Where a partyobtains such information an insufficient period of time bef complete, and the circumstances are such that a failure to amend orsupplement the response would be materially misleading. Where a partyobtains such information an insufficient period of time before thecommencement of trial appropriately to amend or supplement the response,the party shall not thereupon be precluded from introducing evidence atthe trial solely on grounds of noncompliance with this subdivision. Inthat instance, upon motion of any party, made before or at trial, or onits own initiative, the court may make whatever order may be just.Further amendment or supplementation may be obtained by court order.(i) In addition to any other matter which may be subject todisclosure, there shall be full disclosure of any films, photographs,video tapes or audio tapes, including transcripts or memoranda thereof,involving a person referred to in paragraph one of subdivision (a) ofthis section. There shall be disclosure of all portions of suchmaterial, including out-takes, rather than only those portions a partyintends to use. The provisions of this subdivision shall not apply tomaterials compiled for law enforcement purposes which are exempt fromdisclosure under section eighty-seven of the public officers law. CPLR § 3101 Page 3